“The fact that it’s called the California Department of Corrections disgusts me with its irony,” Kopke expanded. “I don’t believe any thinking person believes that locking someone in a cage in an incredibly dangerous environment makes them a better candidate for society when they reenter.” (To clarify, in my current case, I’m not arguing that my client was innocent, but rather that he — a teen — should be given sex offender treatment in lieu of his current incarceration.) Gruber believes that after decades of using criminal law as the main vehicle to handle sex offenses, it’s time for feminists to reassess.
Kopke agrees. She told me that “the criminal justice system is poorly equipped for all sex crimes, but especially those with any subtlety.” She told me that if her friend was raped and did not get a rape kit done at the hospital ASAP, “I don’t know if I could advise her to report the crime to the police, because the system traumatizes people; it does not work to make them whole.” Moreover, Kopke does not believe that punishing the accused helps heal the victim’s pain. “How about we save society money and save peoples’ lives by applying evidence-based treatments like CBT to help heal the traumas of the alleged perpetrators and alleged victims, both of whom undoubtedly are deeply traumatized?” she proposes. Kopke advocates for a restorative justice model, which aims to repair the harm caused by the crime rather than throwing people behind bars.
Feminist legal theorist Catharine MacKinnon has written that understanding the politics of sexuality is crucial to addressing sex crimes. In 1989, she wrote that the “male sexual role […] centers on aggressive intrusion onto those with less power.” MacKinnon continued that sexuality itself is a “social construct of male power; defined by men, forced on women.” (Looking at you, Harvey Weinstein!) Complicating matters, the male point of view, she wrote, is deemed “objective” and “distinguish[es] sharply between rape on one hand and intercourse on the other; sexual harassment on one hand and normal, ordinary sexual initiation on the other.” But MacKinnon believes that sexuality even in its “normal forms” — again, defined by the “objective,” male point of view — often still violates us. Therefore, so long as we call rape and sexual assault “abuses of violence, not sex, we fail to criticize what has been made of sex, what has been done to us through sex, because we leave the line between rape and intercourse […] right where it is.” For these reasons, MacKinnon concluded that it is “difficult to distinguish” rape from ordinary intercourse “under conditions of male dominance.”